Juvenile Justice in America: We Can Do Better

04/13/2015 05:06 pm ET
|
Updated
Jun 13, 2015

Cara H. Drinan
Law Professor at the Catholic University of America in Washington D.C.; juvenile justice advocate.

The juvenile court was invented in Illinois in 1899. Soon thereafter, recognizing that youthful offenders often had diminished culpability and unique potential for rehabilitation, every state in the Union created its own juvenile court system. Developed nations around the world emulated the American model of juvenile justice.

Today the United States is an international outlier in the severity of its juvenile sentencing practices. Until 2005, the United States was the only developed country that subjected children to the death penalty, and today we are the only nation that employs juvenile life without parole. The Pope, U.N. officials and human rights organizations have universally condemned the way the American criminal justice system treats children -- the most vulnerable members of society.

In recent years, there has been some improvement due to new (and overdue) Eighth Amendment rulings from the United States Supreme Court. In Graham v. Florida (2010) and Miller v. Alabama (2012), the Supreme Court significantly curtailed the extent to which states may employ juvenile life without parole.

Since those decisions, Delaware, Hawaii, Massachusetts, Texas, West Virginia and Wyoming have abolished the practice of juvenile life without parole, while other states have precluded the sentence for certain categories of juveniles. West Virginia's legislation in response to Graham and Miller rethinks juvenile sentencing altogether, and California has passed a law providing a new parole protocol for youth serving extreme sentences. The Supreme Court of Florida, considered to be among the most punitive of all states, recently decided a handful of juvenile sentencing cases and held in favor of the juvenile petitioner in each instance. The United States Supreme Court has repeatedly determined that children are different in the eyes of the Constitution; brain science tells us that children are less culpable and more amenable to rehabilitation; and some states are enacting laws that properly reflect both realities.

But there is much work to be done. Take Terrence Graham, with whom I correspond on a regular basis, for example. In 2003, when he was sixteen, Terrence and three other teens attempted to rob a barbeque restaurant in Jacksonville. He entered the restaurant through an unlocked back door at closing time, fled when the manager started yelling at them and left with no money. A Florida judge sentenced Terrence to life without parole for his involvement in that crime. After the Supreme Court struck down that sentence in 2010, Mr. Graham received a re-sentencing hearing and a new sentence of 25 years. Because of his time served to date, he will be released in 12 years at the age of 40 if, as he says, he can "make it out."

Like many young inmates serving lengthy sentences, Mr. Graham does not have access to educational or vocational opportunities. Occasionally, if he is lucky, he can visit the prison library, but for the most part, he is left to pass the hours with fellow inmates in the recreation pavilion where even a chess game can be a risky undertaking if he catches his opponent on a bad day. Mr. Graham witnessed another inmate's rape during his first days in prison, and he recently watched another young inmate be killed. He has spent time in solitary confinement, a practice prohibited by the U.N. more than 20 years ago and opposed by the American Academy of Child & Adolescent Psychiatry. Mr. Graham lives among mostly older inmates, many of whom are serving life sentences and have "nothing to lose." Each day is a quest to survive.

Spurred by neuroscience findings and the moral leadership of the United States Supreme Court, meaningful juvenile justice reform is underway. And yet, in some states, children as young as six can be transferred out of the juvenile justice system and into adult court without any judicial oversight. Once there, they may be sentenced without any regard for their youth and its mitigating attributes. Conditions of confinement for youthful inmates can be horrific. An ongoing lawsuit in Michigan alleges that youth inmates, housed with adults, have routinely been raped while prison officials turned a blind eye.

These are not practices befitting the nation that invented the juvenile court a little more than a century ago. If we are to remain the land of the free we can and we must do better by our children.